N O T PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 05-1287

U N IT E D STATES OF AMERICA,

v. J IM M Y E. RENE,

Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

E A S T E R N DISTRICT OF PENNSYLVANIA

D istric t Court Judge: The Honorable James K. Gardner

(C rim in a l No. 04-00459)

S u b m itte d Under Third Circuit L.A.R. 34.1(a)

A p ril 28, 2006

B E F O R E : AMBRO and FUENTES, Circuit Judges, and IRENAS,* District Judge.

(F ile d : May 10, 2006

O P IN I O N OF THE COURT

F U E N T E S , Circuit Judge.

F o llo w in g a jury trial, Appellant Jimmy Rene was convicted of one count of being a felon in possession of a firearm in violation of 18U.S.C. § 922(g). Rene was sentenced to 57 months in prison on January 27, 2005, shortly after the Supreme Court issued its o p inion in United States v. Booker, which held that the federal sentencing guidelines are a d v is o ry. 543 U.S. 220 , 259-60 (2005). Rene now argues that his sentence was u n re a so n a b le because the District Court focused excessively on the applicable sentencing g u id e lin e s range and on deterrence interests in determining an appropriate sentence, and d id not give enough consideration to other relevant factors. We hold that the District C o u rt's sentence was reasonable, and we therefore affirm.1 I . DISCUSSION In imposing a reasonable sentence, a District Court must exercise its discretion by g iving meaningful consideration to all relevant factors listed in 18U.S.C. § 3553(a).

U n ite d States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). In this case, the relevant f a c to rs are: (1) the nature and circumstances of the offense and the history and c h a ra c ter istics of the defendant; (2 ) the need for the sentence imposed (A ) to reflect the seriousness of the offense, to promote respect for th e law, and to provide just punishment for the offense; (B ) to afford adequate deterrence to criminal conduct; (C ) to protect the public from further crimes of the defendant; and (D ) to provide the defendant with needed educational or vocational tr a in i n g , medical care, or other correctional treatment in the most ef fe ctiv e manner; (3 ) the kinds of sentences available; (4 ) the kinds of sentence and the sentencing range established for . . . the a p p lic a b le category of offense committed by the applicable category of d e f e n d a n t as set forth in the guidelines . . . .

18U.S.C. § 3553(a); see Cooper, 437 F.3d at 329. In making a sentencing determination, a court need not discuss and make findings as to each relevant factor, but the record must m a k e clear that the court took each factor into account. Cooper, 437 F.3d at 329. A rote lis tin g by the court of the § 3553(a) factors is not sufficient if either party properly raises a claim with "recognized legal merit and factual support in the record" and the court fails to address it. Id. at 329, 332. Where the court imposes a sentence within the applicable s e n te n c in g guidelines range, that sentence is not considered reasonable per se, but such a s e n te n c e is more likely to be reasonable than a sentence outside the sentencing guidelines ra n g e . Id. at 331.

Here, Rene has not met his burden of showing that the District Court's sentence w a s unreasonable. After calculating the applicable sentencing guidelines range as 51 to 6 3 months and imposing a 57 month sentence, the District Court made the following sta tem e n t: The defendant is a 24 year-old man who, over a brief period of time, h a s accumulated a substantial criminal record. Since the age of 16, he has b ee n arrested and convicted seven times. However, four of the defendant's six prior convictions have not been considered in computing the defendant's c rim in a l history category because of time period constraints.

This offense represents the third offense in which the defendant was in possession of a weapon[,] which reflects the increased danger of violence w h e n offenders possess weapons. He has been basically on his own since th e age of 14 and has resisted any type of authority or responsibility. At the tim e of this offense, the defendant was on state parole supervision for p re v io u s narcotics trafficking offenses.

I considered several factors in imposing a 57-month period of in c a rc e ra tio n , including the nature and the circumstances of the offense and th e history and characteristics of the defendant, a sentence to reflect the s e rio u s n e ss of the offense[,] to promote respect for the law and to provide just punishment for the offense. I considered the deterrence of future c rim in a l conduct by this defendant and by others, and I considered the need to protect the public from further crimes of this defendant.

I also considered the educational and vocational training needs of th is defendant in imposing a sentence with a recommendation to the Bureau o f Prisons that he be incarcerated in a federal correctional institution where h e would be able to get such vocational and educational training, not only b e c au s e he requested it, but because I consider the defendant a person who h a s the intelligence and the ability to benefit from such education and tra in in g and because he desires to receive it, which is a positive thing.

T h is record does not support Rene's claim that the District Court gave overriding c o n sid e ra tio n to the applicable guideline range and to deterrence concerns without taking in to account other relevant factors. Rene does not point to any legitimate claims raised by h im that the District Court failed to address, and it is clear that the District Court gave an a p p ro p ria te ly careful and individualized consideration of Rene's case. We find that the s e n te n c e imposed was reasonable, and Rene's appeal is therefore denied.

* Honorable Joseph E. Irenas, Senior District Judge for the United States District C o u rt for the District of New Jersey, sitting by designation.

1 The District Court had jurisdiction over this federal criminal case pursuant to 18 U .S .C . § 3231. This Court has jurisdiction to review Rene's sentence for reasonableness p u rs u a n t to 18U.S.C. § 3742(a)(1). See United States v. Cooper, 437 F.3d 324, 327 (3d C ir. 2006). The government argues in its brief that this Court does not have jurisdiction to c o n sid e r the reasonableness of Rene's sentence because the sentence was within the c o rre c tly calculated sentencing guideline range. We rejected that claim in Cooper, 437 F .3 d at 327-28, which was decided after the government's submission of its brief in this c a se .